Texas judge's blood-alcohol test inadmissible
Associated Press

CLEBURNE, Texas - A judge has ruled that the results of a blood-alcohol test for State District Judge Elizabeth Berry taken in November cannot be used as evidence in her drunken driving case.

Berry, 43, was charged with misdemeanor drunken driving Nov. 8 after lab results showed her blood-alcohol level was above the state's legal limit of 0.08 when she was driving. If convicted, Berry could be sentenced to up to 180 days in jail and fined $2,000. She remains free on $1,000 bond.

Read the entire story here:

http://www.chron.com/disp/story.mpl/front/6226434.html

[This message was edited by Greg Gilleland on 01-23-09 at .]

[This message was edited by Shannon Edmonds on 01-23-09 at .]

Many courts would hold there was probable cause to effect a warrantless arrest for DWI on the "Alvarado facts." If that is true, then why would there be any doubt that evidence of that offense would be located in the judge's blood veins at the time of the search? Interesting that the hearing could take three hours.

I'll be interested to see if they appeal. Because it's a warrant, they should be in good shape (though I'd have to see the warrant) as far as the standard of review goes. Surely the magistrate could have reasonably made some inferences about the "missing" details.

And I've always been amazed at how hearings can accordion out into almost full-blown trials when you least expect it.

The evidence would still be admissible to impeach any defense evidence that judge was not intoxicated. This is yet another good reason to expand the mandatory blood draw law.

My questions:

Do you think there is or know of any wrong with the Judge signing the search also hearing the case during the trial?

I know that several agencies are practicing faxing the warrants to the judge and having him/her returning the warrant by fax. Does anyone know of any legal challenges to this practice?

Law Officer Seeking Knowledge

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Originally posted by Law Officer Seeking Knowledge:
My questions:

Do you think there is or know of any wrong with the Judge signing the search also hearing the case during the trial?

I know that several agencies are practicing faxing the warrants to the judge and having him/her returning the warrant by fax. Does anyone know of any legal challenges to this practice?

Law Officer Seeking Knowledge

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We currently use the fax method, no issues as of yet. We sign our affidavits in front of a notary and then fax it and the blank warrant to the Judge who is reviewing it.

LOSK,

In general, there's no problem with a judge issuing a warrant and presiding over the trial. Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992); see also Withrow v. Larkin, 421 U.S. 35, 56 (1975) (finding judge�s pretrial issuance of search warrant has never "been thought to raise any constitutional barrier against the judge�s presiding over the criminal trial").

We did a mandatory weekend (Brazoria Co.) on July 4th last year. IMO, it did not go that well. The problem for cops is that we have to take the time to get a warrant, then drive to a hospital (which may be the opposite direction), then drive the offender to jail (which again may be opposite direction). A single DWI arrest in this scenario could easily take 4 hours. Most cops think it is a waste of time (that may sound terrible, but it is true). As far as I know, all county jails have a nurse on the staff. In my county, there is a registered nurse on call, and my understanding is that a RN is an authorized person to draw blood. Why can't we just drive the offender to jail instead of the hospital? All that is required is to provide the jail with gray top blood tubes. The warrant, blood and booking are then all accomplished in one location. As to the problem with analyzing the samples, DPS has regional crime labs in multiple cities. These labs should be able to process blood for alcohol (not drugs). In addition, county and regional crime labs may be utilized. It takes some coordination, but it can be done. Also, don't forget that urine is also a valid test as defined by PC 49. You just can't use the DIC papers to suspend the license. The other beauty of urine is that a qualified technician is not required. The officer can witness the urine sample in the restroom at the jail. By drawing half blood and half urine, you can cut the analysis time.

Using a phlebotomist in the jail can save substantial time. Our Sheriff has agreed to such a program, and there is someone available 24 hours a day now. That saves some time and makes it easier to get cooperation from the hospitals for those times we need a hospital blood draw.

Next step for saving time is SB 261. Be sure to support it during the session.

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Originally posted by rns:
Also, don't forget that urine is also a valid test as defined by PC 49. You just can't use the DIC papers to suspend the license. The other beauty of urine is that a qualified technician is not required.

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That's right, anyone can get a urine sample -- just wait for the arrested driver to fall asleep in the drunk tank, then put his hand in a glass of warm water.

Of course, the collection part can be a little tricky, but anyone with small children should be able to handle it ...

We do it on all refusals in Washington County.

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Originally posted by julie renken:
We do it on all refusals in Washington County.

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Urine or blood?

One of our police departments just finished moving into a newly built station. The booking area has toilets that can't be flushed by the defendant.

Officers frequently recover drugs floating in the bowl after the defendant tries to dump contraband. How hard would it be to have a toilet without water in the bowl, leading to the recovery of a urine sample?

One problem with urine is that it is a type of sample, like breath, that has to be voluntarily submitted. Another problem is that there is very little case law supporting the science behind the equipment used to test said samples. I was surprised to discover this recently when looking into the law in response to a question I got from a fellow prosecutor. It has been years since I have offered a urine sample into evidence in a Court proceeding and the toxicologists I have spoken to find it to be third best way to measure alcohol intoxication, behind alcohol and breath. I would be surious to hear if anyone has had a urine sample admitted into evidence after a hearing contesting the science behind the instrument that did the testing?

Most forensic labs will probably test urine with the same methodology as blood…i.e., gas chromatography. So methodology shouldn’t be the real issue if GC is used to test the sample. However, urine is not as precise for alcohol measurement. It’s a combination of readings from the past, all averaged together. That is, urine is added to bladder over lengthy periods of time.

Its great for telling us what a person did in the past, but as for telling us he is above .08 at a specific time, there are limitations.

Now if the urine test is .20 or something like that, then its rather difficult to be under .08 at time of driving....but when its closer to the critical level of .08, it becomes much more difficult to say someone is under or over.

If the pee test is good enough for a probation revocation why isn't good enough for DWI?

If it isn't good enough for probation then why do they bother with it?

Burden of proof is lower for probation revocations (preponderance of the evidence) than for the criminal trial itself (beyond a reasonable doubt).

Also, for a probation revocation, you're usually just wanting to prove that he used it at some point, not the specific time frame like a DWI.

And, with a probation case, there was a probation officer who likely followed up by getting an oral admission of the violation from the probationer.

The biggest problem with using urine to test for alcohol is that, short of catheterization, there is no way to collect a sample that is not potentially contaminated with yeast - converting sugar into alcohol while the sample is stored for testing. I personally would rather have my blood drawn.